Professional Documents
Culture Documents
United States v. Martinez, 1st Cir. (2015)
United States v. Martinez, 1st Cir. (2015)
United States v. Martinez, 1st Cir. (2015)
Before
Barron, Selya, and Lipez,
Circuit Judges.
For the
of
Madarati.
superseding
suspected
drug
indictment,
trafficker
containing
named
eleven
Safwan
total
counts
Dzhanikyan or Martinez.
of
the
superseding
indictment
named
- 2 -
Martinez also
thus
proceeded
with
only
Dzhanikyan
and
Martinez
The
as
defendants.
After
the
presentation
of
the
evidence
at
trial,
The
conspiring
extortionate
to
use
means
to
collect
separate
- 3 -
jury
deliberations
began.
In
the
midst
of
the
She requested that the District Court make clear that the
extortion
count
in
considering
(at
least)
the
Martinez's counsel
Martinez's
counsel explained that she would need some time to come up with
the right wording.
Dzhanikyan raised
Court asked the jury: "And you understand the use of all of the
- 4 -
misjoinder."
The
District
Court
denied
the
defendants' Rule 29(a) motions and their joint motion for a new
trial.
In considering the defendants' challenges on appeal, we
start with their individual challenges to the District Court's
initial decision to try them together and to the District Court's
denial of their joint motion for new trial.
We then consider
- 5 -
United States v.
O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993) (quoting United States
v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991)).
An abuse of
Id.
539 (1993)).
challenges the defendants bring -- both individually and jointly -to the decision to try them together.
A.
Dzhanikyan contends that there was a serious risk here
that, in consequence of the joint trial, the jury would not be
able
to
render
reliable
verdict
because
the
evidence
the
- 6 -
satisfy
the
demanding
plain-error
standard,
Dzhanikyan must show that "(1) an error occurred, (2) the error
was obvious, (3) the error affected substantial rights, and (4)
the error seriously impaired the fairness, integrity, or public
reputation of judicial proceedings."
Vzquez, 799 F.3d 134, 145 (1st Cir. 2015) (citation and internal
quotation marks omitted).
making
reliable
judgment
about
Dzhanikyan's
role
in
- 7 -
that the jury would believe that the evidence against Martinez
pertaining to extortion was relevant to the government's case
against
Dzhanikyan
for
drug
distribution,
we
conclude
that
Dzhanikyan has not shown that the District Court plainly erred in
exercising
its
broad
discretion
to
decide
whether
to
sever
severance
challenge
where
the
trial
included
that
score,
Martinez's
challenge
to
the
District
Court's
- 8 -
involvement
conspiracy.
in
Madarati's
alleged
drug-distribution
And he
concedes that even if his trial had been severed from Dzhanikyan's,
the jury still would have been exposed to evidence about Madarati's
drug distribution conspiracy.
- 9 -
that
there
was
an
"extension
of
credit."
And
the
We
- 10 -
Specifically, the
the
defendants'
contention
does
not
hold
up.
its
the
main
jury
charge,
that
the
the
District
defendants
Court
were
expressly
"charged
with
different crimes" and that the jury had a duty to "consider the
evidence separately as to each defendant and as to each count which
a defendant is charged."
- 11 -
The District
crime
to
which
that
evidence
had
no
relation.
raised
his
sufficiency-of-the-evidence
Cir. 2015).
Id.
- 13 -
basis of this evidence "no rational jury could have" found Martinez
guilty beyond a reasonable doubt.
Id.
extend credit" as "to make or renew any loan, or to enter into any
agreement, tacit or express, whereby the repayment or satisfaction
- 14 -
Id. 891
(1).
The government charged Martinez with conspiring with
Madarati to use extortionate means (making threats and planting
evidence) to attempt to collect an alleged "extension of credit"
that Madarati had made to Victor Loukas.
giving
Loukas
money
to
buy
pills
for
Madarati,
Madarati was not fronting money to Loukas for his personal use.
Madarati was supplying Loukas with the means to perform a service
for Madarati -- namely, purchasing drugs that Madarati could then
re-sell. Thus, consistent with its presentation to the jury below,
the government does not argue on appeal that, in giving the money
to Loukas to make the purchases, Madarati made a "loan" within the
meaning of 891.
- 15 -
See United
v.
Sedlak,
720
F.2d
715,
720
(1st
Cir.
1983)).
In
key
question,
therefore,
is
whether
the
record
See Hoyle,
creditor
appears
before
his
'debtor'
and
demands
- 16 -
evidence
of
an
"agreement
to
defer"
payment
--
and
thus
an
v. Traitz, 871 F.2d 368, 387-88 (3d Cir. 1989); cf. Hoyle, 237
F.3d at 6 (finding it unnecessary under the circumstances to rely
on DiPasquale to uphold the conviction).
But to the extent DiPasquale suggests that a mere demand
for payment, or even that a demand for payment that is not
immediately followed by the use of extortionate means, suffices to
show that there has been an agreement to defer payment and thus an
"extension of credit," we disagree.
but
only
to
exact
repayment
of
credit
previously
extended.").
Thus, when there is not a loan, we hold -- consistent
with the decisions of a number of our sister circuits -- that the
government must prove that the creditor manifested an assent (even
if only unilaterally and even if only tacitly) to defer payment.
See United States v. Wallace, 59 F.3d 333, 339-40 (2d Cir. 1995);
United
States
v.
Stokes,
944
F.2d
211,
215
(5th
Cir.
1991)
- 17 -
defer,
however
Boulahanis,
677
minimal,
F.2d
at
burdens
590
the
("The
government's
extension
of
case.");
credit
is
evidence
of
an
"agreement
whereby
the
repayment
or
in
reviewing
the
record
here,
we
are
Absent such
In some circumstances,
- 18 -
But
alter
whatever
message
the
creditor
had
most
recently
for immediate payment, silence may indicate only that the prior
demand has not been withdrawn.
Thus, as the relevant precedents amply demonstrate,
determining whether the record in a given case includes "sufficient
indicia of agreement" to support the inference that a creditor
agreed to defer payment will often require a particularized review
of both the creditor's conduct and the surrounding context.
Here,
But at oral
- 19 -
- 20 -
pills from Madarati and then came up with a cover story to tell
Madarati in order to hide his theft.
There is no evidence in the record about how Madarati
responded to Loukas's false story when he first heard it. But
Loukas conceded in his testimony that the story he told Madarati
was an "outrageous" one that no one would likely believe.
And
thus it is not surprising that the record shows that when Loukas
arrived in Boston, he "basically disappeared for a day," such that
Madarati "had no idea where I was."
- 21 -
this conclusion, we begin with what the record shows about the
first contact that Loukas made with Madarati after Loukas came
back to Boston.
Loukas testified that "about a day" after he got back
from Los Angeles, Loukas turned his phone back on, called Madarati,
and "told him to meet me at my home."
testimony, Loukas repeated the same false story that he had relayed
to
Madarati
over
the
phone
from
California.
Then,
Loukas
- 22 -
changed
his
convenience store.
tone
once
the
two
men
arrived
at
the
completely
violence
if
no
excusing
payment
a
is
debt
made,
or
claim,
can
fairly
nor
be
of
credit
agreement,
because
Wallace
and
his
- 23 -
omitted)); United States v. Morillo, 158 F.3d 18, 22-23 (1st Cir.
1998) ("We must conduct a close review of the record and 'reject
those
evidentiary
interpretations
and
illations
that
are
But
the record does not show that Madarati did anything during that
time period that would provide sufficient evidence for a jury to
find that Madarati was agreeing (even tacitly) to give Loukas more
time to pay.
The record shows that on March 31, the day after the two
men spoke in the convenience store parking lot, Madarati called
Loukas and repeatedly demanded his "shit," even telling Loukas he
would "see [him] today."
not in these interactions in any way suggest that Loukas had more
time to pay.
- 24 -
The government
the delay between that call and the ultimate execution by Madarati
and Kabba of another version of their plan -- which led to
Martinez's arrest near Loukas's house on April 10 -- provides a
sufficient evidentiary basis for a jury to find that Madarati
tacitly agreed to a deferral given the time that passed before
Madarati resorted to the use of extortionate means.
But
the
record
evidence
concerning
Madarati's
In plotting
how best to effect the collection of what he was owed and what he
had demanded be paid, Madarati did not at any point withdraw his
earlier,
clearly
stated
demand
for
- 25 -
immediate
payment,
which
Indeed,
extension of credit" -- and not their use to collect a debt -that the statute prohibits.
And
See
In that case,
Id.
Id.
10
- 26 -
In
sustaining
conviction
under
894
against
Id.
was
established,"
we
noted
that
it
would
have
been
Id.
Id.
meeting and then made two explicit demands for payment in the only
two conversations that the record shows they had thereafter.
And
while Madarati took a little more than a week to make good on his
threat,
he
did
nothing
in
between
that
could
reasonably
be
- 27 -
The District Court did also note that this case was
"arguably" similar to Hoyle for the separate reason that "it would
have been unreasonable for Loukas to assume that Madarati was
paying him (and providing resources) for services that would not
be performed." On that reasoning, the deferral of payment occurred
at the very outset of the transaction, when Madarati first gave
his money to Loukas, as Madarati would receive the pills (or the
money he had handed over) only later.
But, as we have explained, the government affirmatively
represented at oral argument that it was not contending that "the
deferral occurred at the time that Loukas took off to California
with the money," and the government instead has urged us to find
an extension of credit on the basis of the evidence of Madarati's
words and actions in the time period after Loukas returned to
Boston.
Consistent
with
the
government's
view
of
when
any
- 28 -
D.
Congress has made clear that 894 is to be construed
broadly.
or even bilateral.
F.2d
at
720).
Thus,
on
some
facts,
creditor's
delay
in
indicia
of
agreement
to
conclude
that
an
We therefore cannot
- 29 -
the
reasons
set
forth
above,
we
reverse
the
11
- 30 -